Yesterday, 10:47 AM
@Tezzy, of course the result was entirely predictable and demonstrates precisely why the IAS is widely regarded as a kangaroo court.
The most revealing part of its standard preamble is this:
The decision that follows makes a mockery of that assurance.
The supposedly legally qualified adjudicator asserts that Elliott v Loake established a "principle" that, unless the keeper proves otherwise, the keeper is assumed to have been the driver. It established no such principle.
Elliott v Loake was a criminal road-traffic case in which substantial forensic and other evidence connected Mr Elliott and his damaged vehicle with a collision, and his account was found to be untrue. The court concluded from that affirmative evidence that he had been driving. It did not create a legal presumption that every registered keeper was the driver, nor did it place a general burden upon a keeper to prove that somebody else was driving.
The adjudicator does not explain:
That last point exposes the absurdity. Parliament enacted PoFA specifically to create a carefully conditioned mechanism by which an unidentified driver's parking liability may be transferred to the keeper. (not so) Smart Parking admits that it issued a NON-POFA notice. The IAS has nevertheless invented an alternative form of keeper liability by declaring that the keeper must prove they were not driving. That turns PoFA on its head and renders its statutory conditions pointless.
The remainder of the decision is equally revealing. The adjudicator says that the Operator's relationship with the landowner "has no bearing" on the alleged contract. That is nonsense: unless the Operator had authority from the landholder to offer parking contracts and enforce charges in its own name, it could not acquire the contractual rights it claims against anybody.
The adjudicator also treats ANPR entry and exit timestamps as proof of "parking" throughout the entire period, then states that the vehicle remained on site between "expiry of payment (09:52:00) and payment (10:23:51)", when 10:23:51 was plainly the recorded exit time, not a further payment. That alone shows the quality of attention given to the evidence.
Most seriously, the IAS has endorsed the Operator's attempt to impose liability upon you merely because your name is the only one it obtained from the DVLA. No evidence identifies you as the driver, yet the adjudicator has reversed the burden and required you to disprove an allegation that was never supported by evidence in the first place.
Fortunately, as the IAS itself admits, this decision is not legally binding upon you. It does not create a debt, determine legal liability or bind a county court. It is merely the opinion of an anonymous IAS adjudicator operating the parking industry's own appeals scheme. Given the demonstrably false interpretation of Elliott v Loake, it is entirely right that such a decision has no binding effect.
So, we move on. Do not pay simply because the IAS has dismissed the appeal. You may now receive demands from (not so) Smart Parking or powerless debt collectors. Those can be safely ignored. They have absolutely no effect on you and are simply a tool to intimidate the low-hanging fruit on the gullible tree into paying out of ignorance and fear.
Only a formal Letter of Claim or an actual county court claim must be acted upon; if either arrives, come back here.
The IAS has done nothing more than produce a useful written demonstration of why its decisions deserve no deference and why this particular decision could not withstand proper judicial scrutiny.
The most revealing part of its standard preamble is this:
"The Adjudicator who deals with this Appeal is legally qualified and each case is dealt with according to their understanding of the law as it applies and the legal principles involved. A decision by an Adjudicator is not legally binding on an Appellant who is entitled to seek their own legal advice if they so wish."
The decision that follows makes a mockery of that assurance.
The supposedly legally qualified adjudicator asserts that Elliott v Loake established a "principle" that, unless the keeper proves otherwise, the keeper is assumed to have been the driver. It established no such principle.
Elliott v Loake was a criminal road-traffic case in which substantial forensic and other evidence connected Mr Elliott and his damaged vehicle with a collision, and his account was found to be untrue. The court concluded from that affirmative evidence that he had been driving. It did not create a legal presumption that every registered keeper was the driver, nor did it place a general burden upon a keeper to prove that somebody else was driving.
The adjudicator does not explain:
• where the alleged "principle" appears in Elliott v Loake;
• how a fact-specific criminal prosecution creates a presumption in a private contractual dispute;
• what evidence identifies you as the driver;
• why silence or refusal to identify the driver constitutes evidence of driving; or
• why Parliament enacted Schedule 4 of the Protection of Freedoms Act 2012 if an operator can simply ignore its requirements and obtain the same result by presuming that the keeper drove.
• how a fact-specific criminal prosecution creates a presumption in a private contractual dispute;
• what evidence identifies you as the driver;
• why silence or refusal to identify the driver constitutes evidence of driving; or
• why Parliament enacted Schedule 4 of the Protection of Freedoms Act 2012 if an operator can simply ignore its requirements and obtain the same result by presuming that the keeper drove.
That last point exposes the absurdity. Parliament enacted PoFA specifically to create a carefully conditioned mechanism by which an unidentified driver's parking liability may be transferred to the keeper. (not so) Smart Parking admits that it issued a NON-POFA notice. The IAS has nevertheless invented an alternative form of keeper liability by declaring that the keeper must prove they were not driving. That turns PoFA on its head and renders its statutory conditions pointless.
The remainder of the decision is equally revealing. The adjudicator says that the Operator's relationship with the landowner "has no bearing" on the alleged contract. That is nonsense: unless the Operator had authority from the landholder to offer parking contracts and enforce charges in its own name, it could not acquire the contractual rights it claims against anybody.
The adjudicator also treats ANPR entry and exit timestamps as proof of "parking" throughout the entire period, then states that the vehicle remained on site between "expiry of payment (09:52:00) and payment (10:23:51)", when 10:23:51 was plainly the recorded exit time, not a further payment. That alone shows the quality of attention given to the evidence.
Most seriously, the IAS has endorsed the Operator's attempt to impose liability upon you merely because your name is the only one it obtained from the DVLA. No evidence identifies you as the driver, yet the adjudicator has reversed the burden and required you to disprove an allegation that was never supported by evidence in the first place.
Fortunately, as the IAS itself admits, this decision is not legally binding upon you. It does not create a debt, determine legal liability or bind a county court. It is merely the opinion of an anonymous IAS adjudicator operating the parking industry's own appeals scheme. Given the demonstrably false interpretation of Elliott v Loake, it is entirely right that such a decision has no binding effect.
So, we move on. Do not pay simply because the IAS has dismissed the appeal. You may now receive demands from (not so) Smart Parking or powerless debt collectors. Those can be safely ignored. They have absolutely no effect on you and are simply a tool to intimidate the low-hanging fruit on the gullible tree into paying out of ignorance and fear.
Only a formal Letter of Claim or an actual county court claim must be acted upon; if either arrives, come back here.
The IAS has done nothing more than produce a useful written demonstration of why its decisions deserve no deference and why this particular decision could not withstand proper judicial scrutiny.
Never argue with stupid people. They will drag you down to their level and then beat you with experience. - Mark Twain
